Appeal Court strikes down long-term civil psychiatric detention

December 23, 2014 - Toronto - The Ontario Court of Appeal has struck down the provisions of the Ontario Mental Health Act that permit the long-term civil detention of psychiatric patients, which the Court has defined as longer than six months. In a decision written by Justice Robert Sharpe for a unanimous five-judge panel, the Court also found that the Charter rights of PS, the appellant in the case, had been breached by the failure to provide him with treatment and services suitable to his needs as a pre-lingual deaf person. Mercedes Perez and Karen Steward of Swadron Associates were counsel for the 56-year-old appellant, who has been held in the maximum-secure unit of Waypoint Centre for Mental Health Care and its predecessor the Mental Health Centre Penetanguishene for nearly 19 years.

The original habeas corpus application was brought in 2007. Since that time, the Ontario government has amended the Mental Health Act to permit the Consent and Capacity Board to direct the transfer of involuntary patients held for longer than a year to another hospital. The Court of Appeal found that this was inadequate to ensure that the conditions of detention were the least onerous and restrictive and that patients received appropriate services directed toward reintegration into the community.

Ms. Perez says that the ruling emphasizes that the Mental Health Act is not suited to the needs of long-term detainees. "Just because 98 percent of patients are discharged within six months does not mean that we can throw away the key for the other two percent." She also expresses hope that others in PS's position will not have to go to the same lengths to secure care that accommodates their ability and communication differences, "19 years in this case amounts to a life sentence, compounded by being the only non-hearing person in an exclusively hearing environment." Ms. Perez says that it is incumbent on governments and hospitals to work proactively to identify such needs and meet them.

The Court has suspended its declaration of invalidity for 12 months to permit the government to pass new legislation to address the needs of long-term detainees. It has also encouraged Waypoint and Ontario to take steps to meet PS's needs without delay. To read the complete decision of the Court of Appeal, please click here.